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Group seeks reversal of Ontario pesticide ban

A Kingston man who says he represents hundreds of Ontario lawn-care companies has fired what may be the first salvo in a long and nasty legal siege.

The businesses want to overturn the Ontario government's ban on the cosmetic use of pesticides that came into force last year, arguing it is costing them hundreds of millions of dollars in lost revenue.

Jeffrey Lowes filed material Wednesday at a Kingston courthouse seeking to have charges brought against Environment Minister John Gerretsen and five senior bureaucrats in the ministry.

Lowes claims that Gerretsen, Kingston's MPP, and ministry staff breached federal regulations governing pesticide use by enacting a provincial system that is not based on rigorous scientific methods.

Lowes claims at least one chemical that is listed by the province as legal for use by lawncare firms cannot be used, according to federal law.

"The (province's) classification and regulatory system is flawed if it allowed for an unregistered, substandard product to make it through the system," said Lowes, who said he is a consultant and lobbyist working on behalf of the lawn-care industry.

"I work for a number of lawncare companies and the reason they hired me was to avoid any activist coming at them," he said.

Without consent of his clients, he said he could not release a list of the firms he represents.

Gerretsen, who was in Thunder Bay yesterday, could not be reached for comment.

The province outlawed use of about 250 products on lawns, parks, gardens and schoolyards to kill weeds and insects. The provincial law overrides local bylaws.

Lowes claims the ban cost the industry $300 million in lost revenue in 2009.

"This is a flawed, biased system that was brought forward and has nothing to do with the environment, it has to do with politics," said Rob Baxby, owner of Nutri-Lawn in the Kingston area, one of the firms represented by Lowes.

Baxby doesn't believe some of the outlawed chemicals are harmful.

"Why are golf courses still exempt?" he wonders.

Lowes also believes that a criminal charge of fraud could be considered because of a report that he alleges contained a false claim of endorsement by a federal scientist.

Lowes maintains that the report was an important factor in the decision to ban pesticide use.

Lowes said he has started the private prosecution to highlight the failings of Ontario's system.

"It just shows that the system that's currently in place in Ontario violates the existing federal laws," he said, "so the province is going to have to go back to the drawing board and come up with a science-based regulatory system."

A letter written last March by a senior official in the federal Pest Management Regulatory Agency, a division of Health Canada, appears to back Lowes' assertions.

Lowes provided the newspaper with a copy of Jason Flint's letter to Dale Henry, a senior official at the Ontario Ministry of Environment.

In a brief phone conversation, Flint acknowledged that he sent a letter to Henry. He said he did not have time to answer questions about the letter.

In the copy of the letter provided by Lowes, Flint wrote that a provincial guideline governing pesticides "appears to suggest that pesticides that are not registered under the (federal Pest Control Products Act) may be used in Ontario."

Flint referred to an organic substance, azadirachtin, which was not registered federally for use in Canada but is permitted in Ontario.

"Given that this substance is of great interest to organizations in Ontario such as lawn-care companies, this listing has the potential to create confusion about which products and actives are permitted and may lead to use which would be illegal under both Ontario and federal legislation," Flint wrote, in his letter.

Kate Jordan, a spokeswoman in Toronto for the Ministry of the Environment, said azadirachtin had emergency approval by federal authorities for use until August, 2010.

"It's certainly our understanding that the product has been approved for use in Ontario for the emerald ash bore," she said.

Jordan said she could not comment on the private prosecution started by Lowes.

"We haven't received any information with respect to the court action," she said.

Lowes said lawn-care firms don't want to use azadirachtin, an organic pesticide used to kill some bugs.

"Those (Ontario) regulations ... created an artificial market for substandard products," he said.

Lowes said those substandard products don't work effectively so some customers have abandoned the lawn-care firms.

"I would have to say, yes, it's hurting my business," Baxby said.

"We have all lost a certain percentage of our customer base," said Larry Branscombe, owner of Enviro Masters in Kingston.

Branscombe said he is not represented by Lowes but was active in the issue three years ago when local firms banded together to try to fight city hall's plan for a local bylaw banning pesticide use.

Branscombe said he gave up the fight when it was clear "the writing was on the wall."

He said business has dropped because customers see that the products in use aren't as effective.

Lowes said a hearing before a justice related to his private prosecution has been set for Feb. 17. At that hearing, a justice could review his material and begin the process that would lead to the issuance of a summons to an accused person or warrant for that person's arrest.

"He has to prove to a justice of the peace that there is a reasonable offence here," said Crown attorney Bruce Griffith.

Griffith said he has not received any information about Lowes' case.

His office is typically notified when a private prosecution is begun, although he could be left out of the loop if it is considered a federal prosecution.

"It may not ever come to our attention," Griffith said.

Lowes said he understands a federal Crown from Ottawa will attend the Feb. 17 hearing.

In a private prosecution, the Crown can take over the case.

Lowes said he now operates a private consulting business.

In 2003, during a failed run for the job of Kingston mayor, he described himself as a stay-at-home father and part-time taxi driver. He made headlines with a campaign promise to fire 60% of the top managers at City Hall.

Lowes, who polled a few hundred votes in the election, said he had a hit list of managers he would axe after he was elected.